Citation Nr: 20072889 Decision Date: 11/12/20 Archive Date: 11/12/20 DOCKET NO. 10-30 711 DATE: November 12, 2020 REMANDED Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected disabilities and medications prescribed therefore, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1978 to April 1981. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from the April 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that, in part, denied service connection for erectile dysfunction, to include as secondary to service-connected disabilities and the medications taken for service-connected disabilities. When this matter initially came before the Board of Veterans Appeals (Board) in a November 2018 decision, the Board denied service connection for erectile dysfunction, to include as secondary to service-connected disabilities and the medications taken for the service-connected disabilities. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In August 2019, the Veteran’s representative and the VA General Counsel filed a joint motion for partial remand (JMPR) as the parties agreed that the Board erred by failing to provide an adequate statement of reasons or bases. More specifically, the Board relied on Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007), in finding that the Veteran was not competent to provide a diagnosis, or to opine as to the etiology of his claimed erectile dysfunction, stating that such a condition was medically complex and required a medical professional with proper training and credentials to diagnose it. The parties agreed that the Board’s statement of reasons and bases failed to address why the Veteran’s specific complaint of “I have erectile dysfunction,” was not readily observable, self-diagnosable condition analogous to the “broken leg” example discussed in Jandreau. Vacatur and remand were thus requested. The Court granted the JMPR in September 2019, vacating only that part of the November 2018 Board decision that denied entitlement to service connection for erectile dysfunction, to include as secondary to service-connected disabilities and the medications taken for the service-connected disabilities. The matter returned to the Board and in April 2020 the Board remanded the claim for a VA examination to evaluate the nature and severity of the disability with the understanding that the Veteran’s erectile dysfunction is a disability capable of lay observation. The Veteran was provided a VA examination in June 2020 and the examiner opined that the Veteran does not have erectile dysfunction, and that claimed disability was not incurred in or caused by service or caused or aggravated by the service-connected disabilities (to include dysthymia, tinnitus, scar, headaches). The examiner stated that the Veteran maintains that he had a change in erections and ejaculation, which is consistent with his age. It was also noted that the Veteran noted a lack of interest in sexual intercourse because he is not currently in a relationship. Lastly, it was noted that the Veteran had been prescribed Viagra in the past but did not use it. On review, the June 2020 VA medical opinion is inadequate. Although the Veteran reported not having erectile dysfunction when he presented to the most recent examination, he did report erectile dysfunction during the appeal period; specifically, in his December 2015 supplemental claim, and he is competent to report erectile dysfunction, as it is readily observable to him. Of note, the requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim . . . even though the disability resolves prior to the Secretary's adjudication of the claim.” McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Therefore, on remand, an examiner must provide an opinion as to whether the erectile dysfunction reported during the appeal period is related to service, to include as secondary to his service-connected disabilities. The opinions should be supported by adequate rationale. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Thereafter, forward the Veteran’s claim file to the examiner who provided the June 2020 medical opinion, if available, for the purpose of obtaining another medical opinion as to the nature and etiology of the Veteran’s “current” erectile dysfunction. If the same examiner is unavailable, request an addendum opinion from another appropriately qualified VA clinician. *The claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. After a review of the claims file, the examiner is asked to respond to the following keeping in mind that the Veteran stated, in his December 2015 supplemental claim, that he has erectile dysfunction, a condition that is capable of lay observation. (a.) Whether it is at least as likely as not (50 percent or greater probability) that any erectile dysfunction reported during the appeal period (i.e., in December 2015) is proximately due to any of his service-connected disabilities, to include the medications prescribed to treat any such disability; and (b.) Whether it is at least as likely as not (50 percent or greater probability) that any erectile dysfunction reported during the appeal period (i.e., in December 2015) is aggravated by any of his service-connected disabilities, to include the medications prescribed to treat any such disability. A complete rationale for all proffered opinions must be provided. 3. Thereafter, readjudicate the remanded claim. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Moldawer, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.